Va. Tech Victims' Families Weigh Suits Against State
State's Immunity May Be Subjected To Challenge

By Tim Craig
Washington Post Staff Writer
Thursday, September 6, 2007

RICHMOND, Sept. 5 -- The relatives of seven of the slain victims of the Virginia Tech massacre have retained a Washington law firm that specializes in high-profile wrongful death cases, raising the prospect of an expensive legal battle between the state and the families over whether the university could have done more to prevent the shootings.

Peter Grenier and Douglas Fierberg, of Bode & Grenier, said the families are considering wrongful death suits and a federal civil rights claim against the state because they believe university officials could have done more to prevent the April 16 shootings by Seung Hui Cho.

"My view is it is absolutely clear from the panel report that there were a number of glaring omissions by Virginia Tech that resulted in the deaths of students," Fierberg said, referring to the findings of an investigation by a commission appointed by Gov. Timothy M. Kaine (D).

Under the Virginia Tort Claims Act, the relatives have until next April 16 to file a notice of possible legal action against the state. Grenier declined to discuss when such a claim might be filed, but said, "I certainly do think there are legal claims to be pursued."

Grenier and Fierberg's comments are the clearest signal yet that Virginia could face a protracted legal battle with the relatives of the Virginia Tech victims.

Attorney General Robert F. McDonnell (R), who would represent the state in any legal proceeding, declined to comment. Larry Hincker, Virginia Tech's associate vice president for university relations, also declined to comment.

The attorneys represent the families of students Mathew Gregory Gwaltney, 24, of Chesterfield, Va.; Caitlin Hammaren, 19, of Westtown, N.Y.; Juan Ramon Ortiz, 26, of, Puerto Rico; Reema Samaha, 18, of Centreville; Nicole R. White of Smithfield, Va.; Brian Bluhm, 25, of Detroit; and Michael Pohle, 23, of Flemington, N.J. Grenier and Fierberg said they were are finalizing agreements to represent three additional families.

Several of the families have kept a low profile and shunned the spotlight since the shootings. Their decision to retain counsel comes as state officials were taking steps to limit the number of relatives they potentially would have to meet in court. The families have the option to receive $180,000 from a private fund, separate from any potential lawsuits.

Grenier has won large settlements from state and local governments, even though many, including Virginia, are supposed to have immunity from such lawsuits. In 2001, Grenier won a $1.5 million settlement in a wrongful death case against Jefferson County, Colo., stemming from the Columbine High School shootings in 1999. He also won a record $98 million verdict against the District in 1999 in a case involving a drug informant who was killed when he was supposed to be under police protection.

Cho killed two people at Virginia Tech's West Ambler Johnston dormitory the morning of April 16. About 2 1/2 hours later, at the Norris Hall academic building, Cho shot and killed 30 students and faculty members before turning the gun on himself. An additional two dozen students and faculty members were injured.

Kaine's panel issued its final report last week, concluding that Cho's rampage was probably unavoidable because he was intent on killing people that day. But the panel also found that lives could have been saved had the university alerted students sooner about the shooting in the dormitory and canceled classes because the gunman had not been caught. Additionally, the report said that the university's counseling center was passive in its lack of treatment for Cho.

Current and former state officials say they fear the state could face dozens of lawsuits from injured students and the relatives of those killed by Cho.

"It could go on forever . . . in a highly publicized manner," said former attorney general Jerry W. Kilgore. "It could be costly."

State officials have argued that Virginia's liability would be limited because of the legal protection known as "sovereign immunity," a concept that dates to British roots and the notion that kings and governments can do no wrong and cannot be sued.

In the 1970s, the General Assembly waived the state's immunity for tort claims but capped potential damages at $100,000.

Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."

Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.

Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.

Grenier counters that he has not "found any case law that backs up the commonwealth's argument."

In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.

"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said.

Without immunity, the relatives of the Virginia Tech victims could each potentially sue the state for millions of dollars. Under Virginia's wrongful-death statute, there is no cap on damages.

Fred Zinober, a litigation attorney, said he thinks the relatives would have a hard time proving that Virginia Tech was negligent.

"You can always second-guess someone; you can always look in perfect hindsight. But the question is, based on what they knew, did they take reasonable measures at the time, and if they took those measures, would it have made a difference?" Zinober said.

But Carl Tobias, a professor at the University of Richmond School of Law, said he thinks the state should consider setting up a fund to compensate the victims and families in exchange for giving up their right to sue.

"I don't think there are any winners with litigation," Tobias said.

Last month, Virginia Tech offered the families of slain students a one-time payment of $180,000 from a fund that has been receiving private donations. Money from that fund is a gift and is not contingent on the families giving up their right to sue.

Kaine and state legislators are considering creating a separate fund that would be legal compensation and accomplish the goals suggested by Tobias.